Welcome to the new eLessons Learned

eDiscovery Written by Law Students

eDiscovery Written by Law Students

eLessons Learned features insightful content authored primarily by law students from throughout the country. The posts are written to appeal to a broad spectrum of readers, including those with little eDiscovery knowledge.

Law + Technology + Human Error

Law + Technology + Human Error

Each blog post: (a) identifies cases that address technology mishaps; (b) exposes the specific conduct that caused a problem; (c) explains how and why the conduct was improper; and (d) offers suggestions on how to learn from these mistakes and prevent similar ones from reoccurring.

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Which party controls the initial approach to searching for ESI? The producing party, as long its method produces sufficient results that are reasonable and proportional.

Author: RHL   Citation: In re Viagra (Sildenafil Citrate) Prods. Liab. Litig., No. 16-md-02691-RS (SK), 2016 U.S. Dist. LEXIS 144925 (N.D. Cal. Oct. 14, 2016).   Employee/Personnel/Employer implicated: Plaintiff’s Counsel   eLesson Learned: Plaintiff’s counsel should have shown the judge how defendant’s use of keyword search for electronically stored information (ESI) would produce insufficient results instead of pointing out the advantages and savings from using technology assisted review (TAR) or predictive coding.   Tweet This: To compel your opponent to use your preferred method of search for ESI, you must convince the judge that the opponent’s chosen method will not produce sufficient results, and that your method will.     In an ongoing lawsuit against Pfizer, In re Viagra (Sildenafil Citrate) Prods. Liab. Litig., No. 16-md-02691-RS (SK), 2016 U.S. Dist. LEXIS 144925 (N.D. Cal. Oct. 14, 2016), the courtdenied plaintiffs’motion to compel defendant to use technology assisted review (TAR) or predictive coding to search for electronically stored information (ESI) instead of Pfizer’s proposed keyword search method.   The court pointed out that “the responding party is the one best situated to decide how to search for and produce ESI responsive to discovery requests.” Id., at *51. The court further noted that plaintiffs did not cite any cases that required the responding party to use the “best” method of search, and as long as the responding party is able to produce results that are reasonable and proportionate, the court should not get involved.    The court heavily based its holding on a recent decision in Hyles v. New York City, 2016 U.S. Dist. LEXIS 100390, (S.D.N.Y. Aug. 1, 2016)), where the court agreed that TAR was a better approach to search for ESI, but saw no basis in law to require defendant to use it. Like the court in Hyles, the court here refused to strong-arm the defendant into using TAR or predictive coding to search for ESI when plaintiffs did not demonstrate that the use of keyword search would produce insufficient result. The court noted that even if keyword search result would be less complete than TAR-based, the standard is not perfection, but whether the results produced will be reasonable and proportional. The court held that as long as the discovery responses produced are sufficient, the court should not force the responding party to use a particular approach to search for ESI.    RHL is a law student at Seton Hall University School of Law

When is a Motion to Compel in Patent Litigation Too Broad? Proportionality and Pharmaceuticals: A Battle of Titans

Author: Thomas J Patania   Case Citation: Gilead Scis., Inc. v. Merck & Co., No. 5:13-cv-04057-BLF, 2016 U.S. Dist. LEXIS 5616 (N.D. Cal. January 13, 2016).   Employee/Personnel/Employer Implicated: Outside Counsel   eLesson Learned: When a party seeking discovery already has information regarding a patent in question, but refuses to take the opposing party at its word, a Court will find a Motion to Compel information related to other patents disproportionate. Specifically, when dealing with nucleosides and other molecular compounds, counsel should limit discovery requests to the specific compound at issue.   Tweet This: Taking the other party at its word: Disproportionality in patent litigation between pharmaceutical Titans   Taking the other side at its word can be extremely difficult, but in the case of pharmaceuticals, a party may have to do just that. Proportionality is key in patent litigation cases.  In Gilead Scis., Inc. v. Merck & Co., the Defendant (“Merck” or “Defendant”) sought discovery of several molecular compounds synthesized by the Plaintiff (“Gilead” or “Plaintiff”), even though Defendant already had information related to said molecular compounds.   Defendant, through a Motion to Compel, advocated its position by discussing the similarity between the molecular weight of the compound sought in discovery and the compound at issue in the suit. Defendant asserted that Plaintiff was infringing two of Defendant’s patents to a certain molecular compound named PSI-6130. Through a separate suit, Defendant had obtained a photo of several different tubes of compounds in Plaintiff’s possession. The molecular weight listed on one of the tubes was 259.2 grams, the same weight as PSI-6130. Thereafter, Defendant obtained information from Plaintiff that the tube in question held either PIS-0194 or PSI-1834, and not PSI-6130.   Even though Defendant was aware that the tube in question did not hold PSI-6130, Defendant filed a Motion to Compel, seeking discovery of the tubes, refusing to take Plaintiff’s word. Defendant claimed that because the molecular weight of PSI-6130 and the tube in question were the same, Defendant was entitled to discovery of the tube. Looking to the December 2015 updated language of Fed. R. Civ. P. 26(b)(1), the Court found that the discovery sought was disproportionate to the case. While the Court noted that proportionality was a requirement prior to the December 2015 Amendment, the Court emphasized that now, “a party seeking discovery of relevant, non-privileged information must show, before anything else, that the discovery sought is proportional to the needs of the case.”  Gilead Scis., Inc. v. Merck & Co., No. 5:13-cv-04057-BLF, 2016 U.S. Dist. LEXIS 5616 (N.D. Cal. January 13, 2016) (quoting Fed. R. Civ. P. 26(b)(1)). Because Defendant had failed to introduce any evidence that the discovery provided by Plaintiff was false, the Court noted that it “must take the producing party . . .  at its word.” Gilead Scis., Inc. v. Merck & Co., No. 5:13-cv-04057-BLF, 2016 U.S. Dist. LEXIS 5616 (N.D. Cal. January 13, 2016). In denying Defendant’s Motion to Compel, the Court noted that asking Plaintiff “to produce discovery on all sorts of compounds . . . [is] like requiring GM to produce discovery on Buicks and Chevys in a patent case about Cadillacs simply because all three happen to be cars.” Id.   In the future, Defense counsel may be wise to limit discovery requests to the specific compound at issue. While discovery isn’t specifically limited to the precise subject matter of the suit, here PSI-6130, Fed. R. Civ. P. 26(b)(1) is clear that discovery must be proportional to the matter at hand. Remember, when a requesting party refuses to believe that information is what the producing party claims, the opposing party is stuck taking the producing party at its word unless the requesting party can prove proportionality.    Thomas Patania, a Seton Hall University School of Law Student (Class of 2018), focuses his studies in the areas of general civil and healthcare litigation. Thomas spent his first three semesters in Birmingham, Alabama, at Cumberland School of Law, where he was a member of the Cumberland Law Review and National Trial Team. Outside of studying the law, Thomas enjoys snowplowing and hunting.

The Irony of Sending an Email to Erase Emails

Author: Brian Newsome Case Citation: GN Netcom, Inc. v. Plantronics, Inc., 967 F. Supp. 2d 1082 (3rd Cir. 2016). Employee/Personnel/Employer implicated: Vice President eLesson Learned: When you, or your company, has an impending legal action: DO NOT erase emails pertaining to said legal action. Tweet This: Plantronics’ Vice President displays lack of logic and ironically sends email to other employees instructing them to erase emails, automatically losing the case.   What happens when you delete emails that directly concern an impending lawsuit?  The short answer; you lose that case.  Just ask Don Houston from Plantronics. GN Netcom, Inc. v. Plantronics, Inc., is a perfect example of exactly how not to handle yourself when your company is facing a lawsuit.  In 2012, GN Netcome accused Plantronics of monopolizing and restraining trade based on Plantronics’ POD (Plantronics only Distribution) program.  In response to the impending lawsuit, Plantronics took significant steps to prepare.  Included in these steps was initiating a litigation hold and training sessions to ensure compliance within their company.  Apparently, and quite ironically, Don Houston, Plantronics’ Senior VP of Sales, missed the memo.  One month after the litigation hold was issued, Mr. Houston sent out an email that ultimately requested his team immediately delete entire strings of emails.  However, Mr. Houston didn’t stop there.  Ultimately, he went on to delete nearly 100,000 unrecoverable emails.  At this point, you’re probably thinking to yourself; “Well, that doesn’t seem legal.”  The short answer: It’s not, especially when the information deleted would help the opposing side. Federal Rule of Civil Procedure 37(e) addresses the applicability of sanctions when an employee acts in the manner in which Mr. Houston did.  More specifically, Rule 37(e) addresses not only the deletion of emails, but the inability to recover them through other investigative means.  A little tip: the average layperson, a/k/a you, doesn’t really know how to permanently delete emails so that they cease to exist.  More often than not, your emails will be “recoverable” rendering your unethical act useless.  If the emails, or other documents, would be deemed prejudicial to your opposition, Rule 37(e) allows the imposition of sanctions against you.  In the instant case, it was found that thousands of the unrecoverable deleted emails were in fact prejudicial to GN.  Consequently, the mere absence of the prejudicial emails proved the guilt of the accused. Let’s face it, Mr. Houston’s actions were intentional and unethical.  So, at this point, you might find yourself thinking; “Well, obviously I wouldn’t do that.”  However, the lesson to be taken away from Gn Netcom is much broader: always comply with the litigation hold. Keep in mind that anything deleted is quite easily recovered (provided you have someone with training) and you could easily save yourself embarrassment and money by complying with the litigation hold.   Brian Newsome, a Seton Hall University School of Law student (Class of 2017), focuses his studies in the area of Criminology.  He intends to work full time as an investigator at the New Jersey Office of Homeland Security and Preparedness.  He is a twice published author, and a former High School English teacher at the South Kent School in Connecticut. 

How Far Does a Party’s Legal Obligation to Produce Extend?

Author: Markiana Julceus   Case Citation: Jackson v. E-Z-Go Div. of Textron, Inc., No. 3:12-CV-154-TBR, 2016 U.S. Dist. LEXIS 146951 (W.D. Ky. Oct. 21, 2016)   Employee/Personnel/Employer implicated:   Outside Counsel   eLesson Learned: A Defendant’s duty to produce only extends as far as their control, and “control” under FRCP 34 means the “practical ability to obtain” the discovery.   Tweet This: Control for discovery purposes is limited by practicality.     FRCP 34 provides that discovery requests upon another party are proper if the production sought is "in the responding party's possession, custody, or control." “Control” is likely broader than you think it is.  This products liability lawsuit arose out of an accident involving an electric golf cart that led to the tragic death of one of the passengers. As part of the lawsuit against the golf cart manufacturer, Plaintiff, the deceased’s mother, sought discovery of incident reports, involving both the cart at question and other products the Defendant produced over the years, believing that the discovery would show that the Defendant was aware of these supposed defects. The Magistrate Judge directed the Defendant to produce non-privileged information from both internal and external sources regarding “other E-Z-GO incidents related to any of the four design features and other E-Z-GO incidents for which Defendants are not able to exclude that possibility that the incident may relate to those features.”  The “internal sources” included company records stored in an off-site, records of and correspondence with Defendants’ in-house counsel relating to prior claims and incidents, and Defendant’s own risk database known as “Risk Console”.  The “external sources” referred to outside vendors, including insurance companies, outside legal counsel, and expert witnesses who provided services in prior litigation. The Defendant strenuously objected on several grounds, the foremost of which was the argument that the information in the possession of external sources was not within their control. In assessing the external sources, the District Court agreed with the Magistrate Judge that the incident records from the company’s former counsel were within the Defendant’s control. As a result of the previous legal relationship between the parties, the Defendant’s had the “legal right to obtain the documents on demand.”  However, the District Court reversed with respect to information possessed by former insurance carriers, former expert witnesses, and former litigation consultants.  The defendant “has no practical ability, and therefore no ‘legal right’ to demand that independent third parties, not involved in the current litigation perform searches of their documents and produce documents that did not arise out of the current litigation.” The Court refused to require that the Defendant track down third parties and force those third parties to search through their documents in order to provide the requested discovery.   In short, what constitutes “within a party’s control” for discovery purposes is broader than you think it is but limited enough to ensure that discovery won’t become an undue burden.   Markiana received her B.S. in Diplomacy and International Relations from Seton Hall University in 2014 and will receive her J.D. from Seton Hall University School of Law in May 2017. After graduation, Markiana will clerk for an Associate Justice of the New Jersey Supreme Court. 

A Tale of Two Motions to Compel: The Need to Read the Rules

Author: Brendan Johnson   Case Citation: Pyle v. Selective Ins. Co. of Am., No. 2:16-cv-335, 2016 U.S. Dist. LEXIS 140789 (W.D. Pa. Sep. 30, 2016). See attached PDF.   Employer/Employee Implicated: No Employees implicated this case deals with Plaintiff Attorney’s duty to provide HIPPA authorizations and search terms.   eLesson Learned: Electronic Discovery should be a party driven process, this means that attorneys must meet and confer and attempt to reach practical agreements where possible.   Tweet This: Don’t be so formalistic -- FRCP for eDiscovery are to be read broadly!     This case is broken down into two motions and an order from the court. In the first motion, Plaintiff disclosed three doctors as individuals who are likely to have discoverable information on July 7, 2016. On September 6th Defense counsel severed Plaintiff with a request for production of document seeking medical records. Defendant brought this motion before the court on September 30th request to the court compel Plaintiff to produce documents. This motion was denied because F.C.R.P gives 30 days to respond to a request to produce. Since it had not yet been 30 days the motion was premature. The second and more important motion dealt with the Plaintiff refusing to give search terms to aid the Defendant in their eDiscovery. Plaintiff made a request for the production of “all emails, correspondence, memorandum, and/or other documents” from several of Defendants employees. Defendant responded by giving some documents and requesting that plaintiff give some agreeable search terms to aid in the eDiscovery. Plaintiff refused to give any search terms. Consequently, Defendant requested a second time and this motion was brought before the court to compel Plaintiff to provide search terms. Plaintiff claimed that there was no law or support for Defendant’s contention and the Court completely disagreed. The Court found that Defendant’s request was completely within the scope of discovery by the letter and the spirit of the Federal Rules of Civil Procedure. The Court stated, “electronic discovery should be a party-driven process.” Parties must meet and confer to and reach practical agreements without the court having to micromanage “search terms, date ranges, key players and the like.”  Trusz v. UBS Realty Inv’rs LLC, No. 3:09 CV 268 (JBA), 2010 U.S. Dist. LEXIS 92603 (D. Conn. Sep. 7, 2010). The Court granted the motion to compel and ordered that Plaintiff meet with Defendant and confer to establish agreeable search terms. The Court did not set a time limit for this meeting, but stated that it was in the best interest of both parties to resolve the issue as quickly as possible.   Brendan Johnson, a Seton Hall University of Law student Class of 2017, focuses his studies in the area of corporate litigation. Symposium Editor of the Legislative Journal. Will begin Clerking for the Honorable Judge Bariso August 2017. 

What Happens When an Employee Goes on an E-mail Deleting Spree?

 Author: E-Discovery Guru Case Citation: Orchestratehr v. Trombetta, 178 F.Supp.3d 476 (N.D.Tex. 2016) Employee Implicated: Employee eLesson Learned: Failure to prove that e-mails pertaining to a discovery request were deleted in bad faith on the part of the defendant or with the requisite intent to deprive plaintiff of the use of them in litigation will not yield sanctions against the defendant. Tweet This: Even if spoliation of evidence has occurred there will be no sanctions unless showing of bad faith or intent to deprive its use. The legal question of what happens when relevant evidence is spoliated versus when is spoliation the product of regular, routine deletion was at issue in this case. Plaintiffs contend that Defendant Mr. Trombetta intentionally spoliated crucial evidence by deleting e-mails that would have been unfavorable to him in this lawsuit. Consequently, Plaintiffs sought an adverse inference jury instruction as a sanction. “Under the spoliation doctrine, a jury may draw an adverse inference ‘that a party who intentionally destroys important evidence in bad faith did so because the contents of those documents were unfavorable to that party.’” Whitt v. Stephens County, 529 F.3d 278, 284 (5th Cir.2008)(quoting Russell v. Univ. of Texas., 234 Fed. Appx. 195, 207 (5th Cir.2000)). The Court, here, recognized it had a right to assess sanctions using its inherent powers. See Hodge v. Wal-Mart Store, Inc., 360 F.3d 446, 449 (4th Cir.2004) (“The imposition of a sanction . . . for spoliation of evidence is an inherent power of the federal courts.”) Mr. Trombetta, the Court stated, had the “duty to preserve evidence . . . when the [he] ha[d] notice that the evidence [was] relevant to the litigation or should have known that the evidence might be relevant.” Orchestratehr, Inc. v. Trombetta, 178 F.Supp.3d 476, 489 (citing Rimkus Consulting Group, Inc. v. Cammarata, 688 F.Supp.2d 598, 615-16 (S.D.Tex2010)). In this instance, however, the Court believed that the issue of sanctions was covered by Federal Rule of Civil Procedure 37, as amended effective December 1, 2015, to prove sanctions against a party for the failure to preserve electronically stored information. See Fed. R. Civ. P, 37(e). Mr. Trombetta had anticipated litigation when he resigned from Orchestratehr and when he deleted the e-mails at issue. Moreover, in some instances he even said he “may have” intentionally deleted e-mails to cover his tracks. However, there is also another side to the coin. Mr. Trombetta, during the normal course of business, deleted emails on a regular basis unless there was a specific business reason to keep them. He asserted that he “did not know or anticipate that any of the e-mails [he] deleted within the course of [his] work for Orchestratehr would be used in a lawsuit against me [him] or anyone else.” Orchestratehr, 178 Supp.3d at 491. Being that the e-mails were all already backed up on the company’s server, Mr. Trombetta affirms that he never removed or deleted an email from its servers. Ultimately, the Court believed that the evidence established that Mr. Trombetta was aware of potential litigation at the time he deleted the emails and that he knew or should have known that emails on certain subjects might be relevant to the litigation. However, the evidence was less than clear as to whether Mr. Trombetta acted in bad faith or with the intent to deprive another party of the information. As such, the Plaintiff’s Motion for Sanctions against Mr. Trombetta for the spoliation of evidence was denied. In order to prevent such a mishap from taking place again, Mr. Trombetta and others in his position should be more in tune with the way they conduct e-mail deletions. Perhaps, he should have asked colleagues whether such the behavior of routinely deleting emails was appropriate when he knew that potential ensuing litigation might call those e-mails he deleted into question.   E-Discovery Guru will receive his J.D. from Seton Hall University School of Law in 2018. He is pursuing a course load that is geared toward becoming a transactional attorney. His membership on one of the Seton Hall Law journal is aimed at further honing his legal writing and research skills should such skills be required in his post-graduation job. Prior to law school, he was a 2015 summa cum laude graduate of Seton Hall University’s College of Arts and Science where he received his B.A. in Political Science. E-Discovery Guru spent the last summer interning for a State Court Judge in New Jersey. 

IRS is 0-2 in a Battle Against Technology Assisted Review

Author: Stephen Daniels   Case Citation: Dynamo Holdings v. Comm’r of Internal Revenue, Docket No. 2685-11, 8393-12 (T.C. July 13, 2016).   eLesson Learned: Judicial bodies are trending towards acceptance of computer-assisted discovery techniques, perhaps even bordering on embracing it, like in the Dynamo Holdings decisions.   Tweet This: The IRS loses yet another battle against technology assisted review.   The US Tax Court, located in Washington, DC, is the latest judicial body to contribute to the legitimacy of TAR as a technique for complying with discovery requests. For the second time in the last two-plus years, the US Tax Court has rebuffed the IRS’ arguments against the use and efficacy of TAR in Dynamo Holdings v. Comm’r of Internal Revenue.   Back in 2014, the US Tax Court in Dynamo Holdings I had to decide whether predictive coding was a viable method of responding to discovery requests for electronically-stored information (“ESI”). In that case, the IRS filed a formal request for Dynamo Holdings and other related parties (“Dynamo”) to provide certain ESI. Dynamo was hesitant to comply with the IRS’ formal request due to the time and cost involved in reviewing all of the requested documents, as well as removing privileged information contained in the ESI.   As an alternative to producing all the requested ESI manually, Dynamo requested that the US Tax Court allow them to use TAR, or predictive coding. Predictive coding would allow Dynamo, via computer software, to efficiently and economically identify non-privileged information. Over the IRS’ argument that predictive coding should not be allowed due to it being an ‘unproven technology’, the US Tax Court decided that its use would be acceptable. Loss number one for the IRS.   The Court left it to the parties to make it work between themselves, and left the possibility open for the IRS to file another discovery request if they were unhappy with the results of the predictive coding. And sure enough the IRS was not satisfied with the results, which led to Dynamo Holdings II in July 2016. This forced the US Tax Court to publish another decision regarding TAR, but this time relating to its effectiveness.   After Dynamo Holdings I, Dynamo and the IRS worked together to produce the ESI using predictive coding. However, after much collaboration, the parties ran into problems. The parties created a model to produce the ESI, but the IRS doubted its accuracy and performance. In its view, the software was not delivering all the documents it should have. The parties could not agree, so the IRS filed a motion to compel production of the documents that it thought the predictive coding should have turned up.   This time, the US Tax Court’s task was to evaluate the usefulness of the predictive coding. It held that the mere fact that a responding party uses predictive coding does not result in holding TAR to a higher standard than manual review. The use of TAR does not require any more than manual review in order to be considered a complete response.   Overall, the US Tax Court held that Dynamo satisfied its obligation in responding to the IRS’ request by producing any and all documents that the predictive coding deemed relevant. Loss number two for the IRS.   From the Dynamo Holdings cases, it is clear that not only is TAR widely accepted by judicial bodies, but it is given deference. In Dynamo Holdings II, the US Tax Court placed a surprising amount of trust in the predictive coding software. Within the decision, the US Tax Court did not go anywhere near evaluating the predictive coding software itself. The Court’s lack of skepticism was unexpected but perhaps telling as to its level of faith in TAR.   Stephen Daniels, a Seton Hall University School of Law student (Class of 2017), focuses his studies in the area of corporate taxation. He is the Treasurer of the Sports Club, as well as a member of the Corporate Law Society and Tax Law Society. Prior to law school, Mr. Daniels graduated magna cum laude from the Seton Hall University Stillman School of Business, where he earned a B.S. in Business Administration with concentrations in Finance and Management. He also minored in Legal Studies and received a certificate in Leadership Development. After graduating from law school, he will be working in International Tax at KPMG. 

How May The Court Infer Bad Faith Regarding Discovery Compliance?

Author: Eli Crozier Case Citation: Fulton v. Livingston Fin. LLC, 2016 U.S. Dist. LEXIS 96825 (W.D. Wash. July 25, 2016). Employee/Personnel/Employer implicated:   Defense counsel / Hinshaw and Culbertson eLesson Learned:  Because sanctions issued under a court’s inherent power are available if the court specifically finds bad faith or conduct tantamount to bad faith, attorneys should avoid recklessly misrepresenting the law and the facts to the court. Tweet This: Never misstate the law to gain a competitive advantage   While the backdrop of this case concerns a lawsuit and eventual settlement regarding a party’s violation of the Fair Debt Collection Practices Act, it is the actions of Defendant’s attorney that are reprehensible here.  This case involved the imposition sanctions on an attorney for his alleged bad faith in briefing Defendant’s motion to compel discovery. Courts are vested with inherent powers to issue discovery sanctions.  The courts are governed by the control necessarily vested in them to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.  Additionally, a court has the inherent authority to impose sanctions for bad faith, which include a broad range of willful improper conduct.

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Can you be Compensated for Converting e-Discovery Files?

In Bagwe v. Sedgwick Claims Management Services, Inc., the Indian-born Plaintiff sued her former employer under Title VII of the Civil Rights Act, alleging that she had been fired because of her national origin and race.  The United States District Court for the Northern District of Illinois granted the Defendant’s motion for summary judgment and, afterwards, the Defendant filed a Bill of Costs.  The Defendant sought reimbursement for several costs, the most expensive being costs related to e-discovery in the case.  The Defendant made alternative arguments for three different monetary figures that it sought to receive.

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If You Are a Big Dog in a Company Should Make Sure Your Email’s Are Preserved When Put on Notice? Yes, Unless You Want To Be Found Grossly Negligent

In AJ Holdings Grp., LLC v. IP Holdings, LLC, a licensee's failure to ensure that “key players” preserved their e-mails on various accounts, coupled with his failure to implement any uniform or centralized plan to preserve data or even the various devices, demonstrated gross negligence with regard to the deletion of the e-mails. Furthermore, the inference of gross negligence gave rise to the rebuttable presumption that the spoliated documents were relevant to the breach of contract claim at issue. 

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